Judge Gee Order - Flores

Case 2:85-cv-04544-DMG-AGR Document 177 Filed 07/24/15 Page 1 of 25 Page ID #:2674
UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTESGENERAL
Case No.
Date
CV 85-4544 DMG (AGRx)
Title Jenny L. Flores, et al. v. Jeh Johnson, et al.

Present: The Honorable
July 24, 2015

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DOLLY M. GEE, UNITED STATES DISTRICT JUDGE
KANE TIEN
Deputy Clerk
NOT REPORTED
Court Reporter
Attorneys Present for Plaintiff(s)

None Present
Attorneys Present for Defendant(s)

None Present
Proceedings: IN CHAMBERSORDER RE PLAINTIFFS MOTION TO ENFORCE

SETTLEMENT OF CLASS ACTION AND DEFENDANTS MOTION TO
AMEND SETTLEMENT AGREEMENT [100, 120]
I.
INTRODUCTION
The original complaint in this action was filed on July 11, 1985. [Doc. # 1.] On January
28, 1997, the Court approved a class-wide settlement of this action pursuant to Fed. R. Civ. P.
23. (See Plaintiffs First Set of Exhibits in Support of Motion to Enforce Settlement (Ps First
Set), Exh. 1 (Agreement).)
Plaintiffs Jenny L. Flores and other class members filed a motion to enforce the
Agreement on February 2, 2015.1 [Doc. # 100.] On February 27, 2015, Defendants Jeh Johnson
and the U.S. Department of Homeland Security (DHS) and its subordinate entities, U.S.
Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection
(CBP), filed an opposition to Plaintiffs motion.2 [Doc. # 121.] On March 13, 2015, Plaintiffs
filed a reply. [Doc. # 127.]
1
According to the parties 2001 Stipulation extending the Agreement, [a]ll terms of this Agreement shall
terminate 45 days following defendants publication of final regulations implementing this Agreement. (See Ps
First Set, Exh. 3 (Stipulation Extending Settlement of Class Action, December 7, 2001).) Because such
regulations were never published, the Agreement is still in force.
2
Defendants explain that the original Complaint named as Defendants Edwin Meese, Attorney General of
the United States; Immigration and Naturalization Service (INS); Harold W. Ezell, Western Regional
Commissioner, INS; Behavior Systems Southwest; and Corrections Corporation of America. The Agreement names
as Defendants Attorney General Janet Reno, et al., but does not indicate who the other Defendants were at the time.
Under Fed. R. Civ. P. 25(d), Attorney General Loretta Lynch replaces Attorney General Reno as the named
Defendant. In Plaintiffs motion, Plaintiffs named Jeh Johnson, Secretary of Homeland Security, et al. Plaintiffs
counsel, however, confirmed that the intended Defendants are DHS and its subordinate entities, ICE and CBP.
(Defendants Motion to Amend at 1, n.1 [Doc. # 120].)
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On February 27, 2015, Defendants filed a motion to amend the Agreement. [Doc. # 120.]
On March 6, 2015, Plaintiffs filed an opposition. [Doc. # 122.] On March 13, 2015, Defendants
filed a reply. [Doc. # 126.]
A hearing on the motions was held on April 24, 2015.
Having duly considered the respective positions of the parties as presented in their briefs
and at oral argument, the Court now renders its decision.
II.
MOTION TO ENFORCE
Beginning in the summer of 2014, in response to a surge of Central Americans arriving
at the U.S.-Mexico border, ICE adopted a blanket policy to detain all female-headed families,
including children, in secure,3 unlicensed facilities for the duration of the proceedings that
determine whether they are entitled to remain in the United States. (Mot. to Enforce at 2; see Ps
First Set, Exh. 9 (U.S. Immigrations & Customs Enforcement, News Release, November 18,
2014); Ps First Set, Exh. 10 (Declaration of Bridget Cambria (Cambria Decl.)) 3-5
(Since June, ICE has begun detaining all Central American families without the possibility of
release on bond, recognizance, supervision or parole if it believes that those families arrived in
the United States as part of the surge of unauthorized entrantsmostly childrenthat
purportedly began in the summer of 2014.).)
Plaintiffs argue that this no-release policy violates the Agreement. More specifically,
Plaintiffs challenge the following policies and practices: (1) ICEs no-release policy, which
Plaintiffs argue breaches the Agreements requirements that Defendants must minimize the
detention of children and must consider releasing class members to available custodians in the
order of preference specified in the Agreement; (2) ICEs practice of confining children in
secure, unlicensed facilities; and (3) ICEs practice of exposing children in Border Patrol custody
to harsh, substandard conditions and treatment. (Mot. to Enforce at 5-21.)
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3
Secure in this context refers to a detention facility where individuals are held in custody and are not free
to leave. Conversely, non-secure facilities are those where individuals are not held in custody.
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Legal Standard
This Court has the inherent power to enforce the terms of the Agreement because, with
certain exceptions not relevant here, the Agreement provides for the enforcement, in this
District Court, of the provisions of this Agreement. . . . (See Agreement 37; Ps First Set,
Exh. 2 (Order Approving Settlement of Class Action, January 28, 1997).) See also Kokkonen
v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 380-81, 114 S. Ct. 1673, 128 L. Ed. 2d 391
(1994); Dacanay v. Mendoza, 573 F.2d 1075, 1078 (9th Cir. 1978). [T]he construction and
enforcement of settlement agreements are governed by principles of local law which apply to
interpretation of contracts generally. ONeil v. Bunge Corp., 365 F.3d 820, 822 (9th Cir. 2004)
(quoting United Commercial Ins. Serv., Inc. v. Paymaster Corp., 962 F.2d 853, 856 (9th Cir.
1992)).
Moreover, the parties agree that the Agreement is a consent decree. Consent decrees
have the attributes of both contracts and judicial acts, and in interpreting consent decrees, courts
use contract principles, specifically the contract law of the situs state. Thompson v. Enomoto,
915 F.2d 1383, 1388 (9th Cir. 1990). Under California law, a court must interpret a contract
with the goal of giving effect to the mutual intention of the parties as it existed at the time of
contracting. Cal. Civ. Code 1636. It is the outward expression of the agreement, rather than a
partys unexpressed intention, which the court will enforce. Winet v. Price, 4 Cal. App. 4th
1159, 1166, 6 Cal. Rptr. 2d 554 (1992). Where the parties dispute the meaning of specific
contract language, the court must decide whether the language is reasonably susceptible to the
interpretations urged by the parties. Badie v. Bank of Am., 67 Cal. App. 4th 779, 798, 79 Cal.
Rptr. 2d 273 (1998). Where the contract is clear, the plain language of the contract governs.
Bank of the West v. Superior Court, 2 Cal. 4th 1254, 1264, 10 Cal. Rptr. 2d 538 (1998).
The Court must construe the contract as a whole, being sure to give effect to every part,
if reasonably practicable, each clause helping to interpret the other. Pinel v. Aurora Loan
Servs., LLC, 814 F. Supp. 2d 930, 943 (N.D. Cal. 2011) (quoting Cal. Civ. Code 1641)
(internal quotation marks omitted). Courts must interpret contractual language in a manner that
gives force and effect to every provision, and not in a way that renders some clauses nugatory,
inoperative or meaningless. Id. When necessary, a court can look to the subsequent conduct of
the parties as evidence of their intent. See Crestview Cemetery Assn. v. Dieden, 54 Cal. 2d 744,
754, 8 Cal. Rptr. 427 (1960). Finally, [i]n cases of uncertainty not removed by the preceding
rules, the language of a contract should be interpreted most strongly against the party who caused
the uncertainty to exist. Cal. Civ. Code 1654.
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Discussion
1.
Preference for Release Provision
Plaintiffs argue that Defendants no-release policyi.e., the policy of detaining all
female-headed families, including children, for as long as it takes to determine whether they are
entitled to remain in the United Statesviolates material provisions of the Agreement.
These provisions require ICE (1) to release a minor from its custody without
unnecessary delay to a parent, a legal guardian, or other qualified adult custodian, except where
the detention of the minor is required either to secure his or her timely appearance before the
INS or the immigration court, or to ensure the minors safety or that of others; and (2) [u]pon
taking a minor into custody, . . . [to] make and record prompt and continuous efforts on its part
toward family reunification and the release of the minor . . . . (Agreement 14, 18.)
Plaintiffs contend that Defendants, by making no effort to locate custodians for minors
who are apprehended with their mothers and by refusing to release these minors even when a
qualified custodian is available, have not only breached the Agreement but also have unilaterally
revised it to create an additional exception to releasefor minors who have been apprehended as
part of a female-headed family. See Walnut Creek Pipe Distrib., Inc. v. Gates Rubber Co. Sales
Div., 228 Cal. App. 2d 810, 816, 39 Cal. Rptr. 767 (1964) (courts should not imply additional
terms, except in cases of obvious necessity).
a.
The Agreement Encompasses Accompanied Minors
As a threshold matter, the parties dispute whether minors who are apprehended as part of
a female-headed family are class members covered by the Agreement. The plain language of the
Agreement clearly encompasses accompanied minors. First and most importantly, the
Agreement defines the class as the following: All minors who are detained in the legal custody
of the INS. (See Agreement 10 (emphasis added).) The Agreement defines a minor as any
person under the age of eighteen (18) years who is detained in the legal custody of the INS.
(See id. 4.) Defendants argue in their brief that this definition should not be dispositive of who
was intended to be in the class because the parties purpose in defining minor in that manner
was merely to distinguish the Agreements definition of a minor from the INAs definition of a
child as an unmarried person under 21 years of age, 8 U.S.C. 1101(b)(1). The language
defining minor in the Agreement, however, is wholly unambiguous and Defendants have
offered no reasonable alternative reading that would make it ambiguous. As such, extrinsic
evidence of intent is inadmissible, even if Defendants had proffered any, which they did not.
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The text of the Agreement provides further support for the finding that the Agreement
encompasses all minors who are in custody, without qualification as to whether they are
accompanied or unaccompanied. In Paragraph 9, for example, the parties describe the scope of
the Agreement in the following way: This Agreement sets out nationwide policy for the
detention, release, and treatment of minors in the custody of the INS. In Paragraph 12A, the
Agreement specifically acknowledges the possibility of accompanied minors when it notes that
[f]acilities will provide . . . contact with family members who were arrested with the minor.
Moreover, the Agreement provides special guidelines with respect to unaccompanied minors in
some situationse.g., Paragraph 12A (The INS will segregate unaccompanied minors from
unrelated adults. Where such segregation is not immediately possible, an unaccompanied minor
will not be detained with an unrelated adult for more than 24 hours.), and Paragraph 25
(Unaccompanied minors arrested or taken into custody by the INS should not be transported by
the INS in vehicles with detained adults . . . .). It would make little sense to write rules making
special reference to unaccompanied minors if the parties intended the Agreement as a whole to
be applicable only to unaccompanied minors. Finally, the Agreement expressly identifies those
minors to whom the class definition would not applyan emancipated minor or an individual
who has been incarcerated due to a conviction for a criminal offense as an adult (see Agreement
4)an exclusion that does not mention accompanied minors. Had the parties to the Agreement
intended to exclude accompanied minors from the Agreement, they could have done so explicitly
when they set forth the definition of minors who are excluded from the Agreement.
Defendants contend that the definition of a class member should be read narrowly to
exclude accompanied minors because Plaintiffs lawsuit originally challenged the
constitutionality of INSs policies, practices, and regulations regarding the detention and release
of unaccompanied minors. (See Agreement at 3 (emphasis added); see also Order re Class
Certification [Doc. # 142-1].) This argument is unavailing in light of the fact that a consent
decree may benefit individuals who were not victims of a defendants illegal practices and
provide broader relief than the court could have awarded after a trial. Local No. 93, Intl Assn
of Firefighters, AFL-CIO C.L.C. v. City of Cleveland, 478 U.S. 501, 525, 106 S. Ct. 3063, 92 L.
Ed. 2d 405 (1986). To the extent that Defendants are arguing that Plaintiffs original intent in
filing the lawsuit should inform the Courts understanding of what the parties meant when they
defined the class in their Agreement, Defendants argument is not sufficiently compelling to
outweigh the plain language of the Agreement indicating the parties intent to make all minors,
without qualification, part of the class.
Because the plain language of the Agreement is clear that accompanied minors are part of
the class, the inquiry can end here. Nonetheless, the Court notes that other evidence supports its
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interpretation of the Agreement. For example, the regulatory framework in place at the time the
parties formed the Agreement further reinforces the Courts conclusion that the Agreement
applies to all minors. Defendants primary argument is that the preference for release
provision should not be construed to apply to accompanied minors in family residential centers
because the procedures and conditions of release, as discussed in Section VI of the Agreement,
clearly contemplate that the parent or other individual to whom the child would be released
would already be present in the interior of the United States. As discussed in greater detail infra,
however, the Court finds strong evidence to the contrary. Furthermore, just because the
Agreement does not explicitly provide for the release of parents and legal guardians or address
the rights of adult detainees does not mean that the Agreement does not apply to accompanied
minors. To the extent Defendants are asserting that releasing accompanying relatives would
have been considered an unusual step at the time the Agreement was formed, the following
regulation governing the release of detained minors in a narrower context, which was in place
when the parties formed the Agreement and which is still in force, belies Defendants assertion:
(i)
Juveniles may be released to a relative (brother, sister, aunt, uncle, or
grandparent) not in Service detention who is willing to sponsor a minor and the
minor may be released to that relative notwithstanding that the juvenile has a
relative who is in detention.
(ii)
If a relative who is not in detention cannot be located to sponsor the
minor, the minor may be released with an accompanying relative who is in
detention.
8 C.F.R. 212.5(a)(3) (1997) (emphasis added). Given the regulatory context in which the
parties formed the Agreement, it is reasonable to infer that the parties contemplated the release of
an accompanied minor together with a relative in detention.
Finally, at least one other district court has held, at the preliminary injunction stage, that
the Agreement applies to all minors, including accompanied minors, even though it saw the
preference for release provision as having limited utility in the context of family detention. See
Bunikyte, ex rel. Bunikiene v. Chertoff, No. A-07-CA-164-SS, 2007 WL 1074070, at *3 (W.D.
Tex. Apr. 9, 2007) ([T]he Flores Settlement, by its terms, applies to all minors in the custody
of ICE and DHS, not just unaccompanied minors.). The Court finds the reasoning in Bunikyte
persuasive on this issue, and Defendants have not offered a reason why this case is
distinguishable.
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In light of the Agreements clear and unambiguous language, which is bolstered by the
regulatory framework in which the Agreement was formed and Defendants past practice,4 the
Court finds that the Agreement applies to accompanied minors.
b.
Defendants No-Release Policy is a Material Breach of the Agreement
Even if the Agreement applies to accompanied minors, Defendants assert that ICEs norelease policy nonetheless complies with the Agreement. Defendants argue that, because
separating a child from his or her parent endangers the minors safety, its policy of detaining an
4
Plaintiffs point out that Defendants no-release policy unfairly penalizes women who are apprehended
with children. According to Plaintiffs, until June 2014, Defendants exercised individualized discretion to release
women who were statutorily eligible, such as bona fide asylum seekers, regardless of whether they were
apprehended with their children. (See Ps First Set, Exh. 17 (Declaration of Barbara Hines (Hines Decl.)) 9;
Cambria Decl. 2.) Furthermore, Defendants, even now, individually assess women apprehended without children
and nearly all adult males to see whether detention is warranted. (See Hines Decl. 17.) Starting in June 2014,
however, Defendants ceased exercising such individualized discretion for women who are apprehended with
children. (See Hines Decl. 14.)
On May 13, 2015, Defendants lodged a press release announcing a series of changes with respect to the
family residential centers. (Defendants May 13, 2015 Press Release (May 13, 2015 Press Release) [Doc. # 1531].) These changes included a policy of reviewing the cases of any families detained beyond 90 days, and every 60
days thereafter, to evaluate whether detention or the designated bond amount continues to be appropriate during the
pendency of their immigration case. On July 8, 2015, Defendants announced additional reforms, including a plan
to offer release with an appropriate monetary bond or other condition of release to families at residential centers who
are successful in stating a case of credible or reasonable fear of persecution in their home countries. (Defendants
July 8, 2015 Press Release (July 8, 2015 Press Release) [Doc. # 164-1].)
Defendants contend that these reforms should affect the content and/or ultimate disposition of the Courts
order such that the Court should rule in Defendants favor on the pending motions. (Defendants Notice of
Objection to Premature Lodging of Amended Proposed Order (Ds Objection) [Doc. # 175].) This rather cryptic
comment does not clarify Defendants reasons for filing these press releases with the Court. If Defendants are trying
to argue that the intervening reforms render the case moot, then Defendants are incorrect. See Rosebrock v. Mathis,
745 F.3d 963, 971 (9th Cir. 2014), cert. denied sub nom. Rosebrock v. Hoffman, 135 S. Ct. 1893 (2015) (The
voluntary cessation of challenged conduct does not ordinarily render a case moot because a dismissal for mootness
would permit a resumption of the challenged conduct as soon as the case is dismissed.). A defendant claiming
that its voluntary compliance moots a case bears the formidable burden of showing that it is absolutely clear the
allegedly wrongful behavior could not reasonably be expected to recur. McCormack v. Herzog, 788 F.3d 1017,
1025 (9th Cir. 2015).
Merely issuing a press release announcing a change in policy from detaining all female-headed families to
releasing those who have successfully stated a case of credible or reasonable fear of persecution does not satisfy
Defendants substantial burden of showing that it is absolutely clear that the violations of the Agreement could not
reasonably be expected to recur. Even assuming Defendants new policy complies with the Agreement, Defendants
could easily revert to the former challenged policy as abruptly as they adopted the new one.
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accompanied minor together with his or her parent, rather than releasing the minor to another
individual, falls within the exception set forth in Paragraph 14 of the Agreement, which allows
for continued detention to ensure the minors safety or that of others.
In their reply, Plaintiffs do not squarely address this argument. Plaintiffs do contend,
however, that the Agreements preference for release provision requires ICE to exercise its
discretion to release the accompanying mothers, so long as they do not present a danger or flight
risk. (See Agreement 14 ([T]he INS shall release a minor from its custody without
unnecessary delay, in the following order of preference, to: a parent . . . .).) If true, Plaintiffs
contention could resolve the issue Defendants identifiedof potentially endangering the minors
safety by separating a minor from his or her parentby releasing rather than detaining the parent
and child together if no danger or flight risk is identified.
To determine whether the Agreement requires Defendants to release an accompanying
parent, the Court examines the Agreements text, Defendants conduct subsequent to the
formation of the Agreement, and the regulatory framework at the time the Agreement was
formed and as it exists today. It is true that the Agreement does not contain any provision that
explicitly addresses adult rights and treatment in detention. But ICEs blanket no-release policy
with respect to mothers cannot be reconciled with the Agreements grant to class members of a
right to preferential release to a parent. (See Agreement 14.) Although Defendants argue that
the provision could be read to mean a child should be released to a parent only if that parent is
already lawfully in the United States, Paragraph 15 clearly contemplates the possible release of a
child to an adult who is not lawfully in the United States:
Before a minor is released from INS custody pursuant to Paragraph 14 above, the
custodian must execute an Affidavit of support (Form I-134) and an agreement to
. . . notify the INS at least five days prior to the custodians departing the United
States of such departure, whether the departure is voluntary or pursuant to a grant
of voluntary departure or order of deportation . . . .
(Agreement 15 (emphasis added).) In light of the contract interpretation principle that a
written contract must be read as a whole and every part interpreted with reference to the
whole, Kennewick Irrigation Dist. v. United States, 880 F.2d 1018, 1032 (9th Cir. 1989), this
provision makes clear that the Agreement does not require that the parent to whom the child is
released in Paragraph 14 must already be lawfully in the United States.
Defendants conduct over the last two decades since the Agreement was signed also
clarifies what the parties understood to be the meaning of the preference for release provision.
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See Crestview Cemetery, 54 Cal. 2d at 754 (when necessary, a court can look to the subsequent
conduct of the parties as evidence of their intent). It is uncontroverted that, prior to June 2014,
ICE generally released children and parents upon determining that they were neither a significant
flight risk nor a danger to safety. (See Cambria Decl. 2; Ps First Set, Exh. 11 (Declaration of
Carol Ann Donohoe) 2.) Thus, ICEs conduct subsequent to the formation of the Agreement
bolsters Plaintiffs argument that the preference for release provision requires the release of the
accompanying mother along with the child, so long as she does not present a significant flight
risk or danger to safety.
Finally, the existing regulatory framework, discussed supra, suggests that the parties
would have contemplated releasing an accompanying relative. Whereas the regulation provides
for the release of an accompanying relative only if no other suitable relative can be found, the
Agreement, under the preference for release provision, would presumably release the
accompanying parent first. Despite this difference between the regulation and the preference for
release provision in the Agreement, the regulation provides contextual support for Plaintiffs
contention that the parties intended to allow for the release of the accompanying parent, so long
as the release does not create a flight risk or safety risk.
In light of all the evidence, the Court agrees with Plaintiffs interpretation of the
preference for release provision, described in Paragraph 14 of the Agreement. As such,
Defendants must release an accompanying parent as long as doing so would not create a flight
risk or a safety risk. Since releasing the parent along with the child in this case would, in most
instances, obviate Defendants concern that releasing the child alone would endanger the childs
safety, Defendants argument that this policy falls within the safety risk exception as a blanket
matter is unavailing.5 Therefore, the Court finds that Defendants blanket no-release policy with
respect to minors accompanied by their mothers is a material breach of the Agreement.
c.
Defendants Policy Argument In Favor of Detaining Children
Defendants make a separate policy argument to justify detaining children who are
accompanied by their mothers even though the Agreement requires otherwise. Defendants
5
Neither side directly addresses the possibility that releasing the mother and child together might create a
risk to safety of both mother and child, if neither has a place to stay within the United States. The parties also do not
address the situation where the mother chooses to stay in the detention facility or has been deemed a flight or safety
risk. As a practical matter, Defendants would be justified in detaining both mother and child in that case, but the
examples presented in this case typically concern a mother and child who have relatives already residing in the
United States who are willing to ensure their safety.
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contend that release of accompanied children and their parents gives families a strong incentive
to undertake the dangerous journey to this country. Defendants support this argument with the
following observations of Border Patrol officer Kevin W. Oaks:
[F]amily units apprehended by Border Patrol . . . claimed that a principal motive
for entering the United States was to take advantage of the permisos that the
United States was granting to family units. The term permiso in this context is
used to refer to a Notice to Appear which permits aliens to depart the Border
Patrol station without detention. . . .
While this impression [that the U.S. government was planning to stop issuing
permisos in June or July 2014] was incorrect, it speaks to the understanding of
the family units that detention, and the ability to simply depart a Border Patrol
station, factor strongly into their determination on when and whether to cross into
the United States. . . .
Based on my experience as a Border Patrol Agent, the use of detention has
historically been effective at deterring aliens (specifically aliens from countries
other than Mexico) from entering the United States through the South Texas
region. For example, in 1989 when there was a dramatic increase of Central
American aliens illegally entering the United States, the former Immigration and
Naturalization Service detailed staff to South Texas, opened temporary detention
camps, and instituted a one-day expedited review of asylum applications, which
dramatically reduced the average daily apprehensions of non-Mexicans along the
Texas border. Similarly, in 2005 when the RGV Sector was experiencing an
influx of Brazilian nationals, the implementation of expedited removal with
detention quickly and significantly reduced the number of Brazilian nationals
illegally entering the United States.
Consistent with the information contained in paragraphs 26 and 27, Border Patrol
apprehension statistics demonstrate that, year-over-year, there has been an
approximate 16% reduction in family units apprehended in the RGV Border
Patrol Sector. Moreover, from July 10, 2014 until the present, there has been an
approximate 63% reduction in family units apprehended in the RGV Border
Patrol Sector as compared to the period between December 1, 2013 to July 9,
2014.
(Declaration of Kevin W. Oaks (Oaks Decl.) 25-29.)
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Setting to one side the question of whether this policy argument is relevant to interpreting
the Agreement, the Court is unconvinced of the persuasive value of the statistical evidence
Defendants proffer in support of this argument. Without discounting the value of Oaks personal
observations, the Court finds that the statistical evidence he cites, as presented in his declaration,
is insufficient to establish causation between Defendants current policy of detaining femaleheaded families in family detention centers and the decline in family units apprehended at the
border. Oaks bases his conclusion on evidence that past actions taken by Defendant in 1989 and
2005 resulted in reductions in apprehensions. But even assuming the prior reductions in
apprehensions were in fact caused by the actions Defendant took in 1989 and 2005 (which itself
is not clearly established), those actions, which consisted of expedited review and removal, are
notably different from the policy that is now being contested, of detaining minors accompanied
by their mothers in family detention centers for the duration of their asylum proceedings. Thus,
the helpfulness of the outcomes of measures taken by Defendants in 1989 and 2005 in assessing
the effectiveness of Defendants current family detention policy is minimal at best.
Moreover, although apprehensions of family units in his sector have declined 63% from
an approximately six-month period immediately before the challenged policy took effect, Oaks
also mentions that apprehensions of family units had been declining 16% year-over-year for an
unspecified period of time. This statistic further calls into question whether and to what extent
the decline in apprehensions of family units is attributable to Defendants recent family detention
policy, given that such apprehensions were already on the decline prior to the implementation of
the policy in 2014.6
In sum, even assuming the dubious proposition that the Court can consider a policy
argument to alter the terms of the Parties Agreement, the Court is not persuaded by the evidence
presented in support of Defendants policy argument.7
Further, at the hearing, Defendants mentioned that summer is the high season in border crossings.
Defendants failed to account for how much of the 63% decline in family unit apprehensions from the prior sixmonth period could have been attributable to normal seasonal fluctuation. At the very least, Defendants could have
provided family unit apprehension statistics by season from prior years so that the statistical significance of the 63%
decline could be more readily determined.
7
In the May 13, 2015 Press Release, ICE announced that, following a Washington, D.C. federal district
courts injunction against invoking general deterrence in custody determinations, it has presently determined that it
will discontinue invoking general deterrence as a factor in custody determinations in all cases involving families.
[Doc. # 153-1.] This announcement does not clarify, however, whether ICE has decided that it will no longer
invoke general deterrence as an argument for amending the Agreement. In the absence of such clarification, the
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Non-Secure, Licensed Facilities Provision
Plaintiffs assert that Defendants have materially breached the Agreement because they
are obligated, but have failed, to house the children they do not release in non-secure facilities
that are licensed to care for dependent children. (Mot. to Enforce at 2-3; see Ps First Set, Exh.
23 (Declaration of Carlos Holgun (Holgun Decl.)) 4-5; Ps First Set, Exh. 16 (Affidavit
of Adriana Pion) (confirming that the Karnes Family Residential Center, in Karnes City,
Texas, and the T. Don Hutto Residential Center, in Taylor, Texas, are not licensed by the states
Department of Family and Protective Services).)
The Agreement provides the following: In any case in which the INS does not release a
minor pursuant to Paragraph 14, . . . [e]xcept as provided in Paragraphs 12 or 21, such minor
shall be placed temporarily in a licensed program . . . . (Agreement 19.) A licensed
program is defined as a program, agency or organization that is licensed by an appropriate
State agency to provide residential, group, or foster care services for dependent children . . . .
(Id. 6.) The Agreement further requires that [a]ll homes and facilities operated by licensed
programs . . . shall be non-secure as required under state law . . . . (Id. 23.) Thus, according
to the language of the Agreement, Defendants must house children who are not released in a
non-secure facility that is licensed by an appropriate state agency to care for dependent children.
Defendants argue that the licensing provision cannot be interpreted to apply to family
residential centers because (1) these centers did not exist at the time the agreement was formed,
and (2) there is no state licensing process available nownor was there in 1997for facilities
that hold children in custody along with their parents or guardians. Defendants reason
backwards. Rather than considering whether the policy Defendants decided to enact in 2014 was
contemplated by the parties to the Agreement in 1997, the Courts task is to examine whether
Defendants actions in 2014 satisfy the obligations set forth in the 1997 Agreement. Under the
Agreement, Defendants are required to provide children who are not released temporary
placement in a licensed program. The fact that the family residential centers cannot be licensed
Court proceeds on the assumption that general deterrence continues to be Defendants primary policy justification
for their detention of accompanied minors.
Alternatively, if Defendants mean they are no longer invoking general deterrence as a reason to amend the
Agreement as well, this change would only strengthen the Courts finding, discussed infra, that no change in factual
circumstances warrants modification of the Agreement. The primary, if not only, justification that Defendants
presented for detaining female-headed families was the supposed deterrent effect that such a measure would have on
prospective entrants. If Defendants have indeed abandoned this rationale for family detention, then Defendants have
no other basisat least, none that they have presented to this Courtfor detaining female-headed families.
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by an appropriate state agency simply means that, under the Agreement, class members cannot
be housed in these facilities except as permitted by the Agreement.8
Furthermore, Defendants contend that even if they are not following the letter of the law,
they are following the spirit. Defendants argue that ICE family residential facilities substantially
comply with the requirements of the Agreement despite the absence of licensing. See Jeff D. v.
Otter, 643 F.3d 278, 283-84 (9th Cir. 2011) (Because consent decrees have many of the
attributes of ordinary contracts [and] . . . should be construed basically as contracts, the doctrine
of substantial compliance, or substantial performance, may be employed.) (internal citation and
quotation marks omitted).
According to Defendants, ICE family residential centers comply with ICE Family
Residential Standards (available at http://www.ice.gov/detention-standards/family-residential),
which were developed with input from medical, psychological, and educational experts, as well
as civil rights organizations. These centers, according to Defendants, afford detainees many
amenities, including meals, medical and dental services, recreational opportunities, and
education for school-age children.9
8
Defendants concede that the logical outcome of applying the licensing provision to family residential
centers would be to make it impossible for ICE to house families at the family residential centers. Defendants also
contend that it would have to mean separating accompanied children from their parents or legal guardians.
Although the Agreement does not mandate that Defendants must release parents or legal guardians in all
circumstances, Defendants certainly can and must make individualized determinations about whether releasing the
parent is appropriate in a given situation. Defendants can also use the family residential centers as temporary
facilities consistent with Paragraph 12A of the Agreement.
9
Chief of Juvenile and Family Residential Management Unit (JFRMU) Stephen M. Antokowiak attests
to the conditions described below at the Karnes Family Residential Center (KFRC), in Karnes, Texas, which
opened on July 31, 2014 and has 532 beds, and the South Texas Family Residential Center (STFRC), in Dilley,
Texas, which opened on December 18, 2014 and has 480 beds. (See Declaration of Stephen M. Antkowiak
(Antkowiak Decl.) 5, 18.)
Upon arrival at the KFRC, families are brought into the intake room, where there is seating and a
refrigerator stocked with beverages and snacks. (See Antkowiak Decl. 6, Exh. 2 (Photograph of KFRC Intake
Room).) Families may then select their own non-institutional clothing from a clothing storage room or wear the
clothing they brought with them. (See Antkowiak Decl. 7, Exh. 2 (Photograph of KFRC Clothing Storage
Room).) For every two KFRC housing suites, each of which contains six beds to accommodate one or more
families, there is an indoor day room, which features a flat-screen television, access to telephones, a refrigerator with
snacks and beverages, and playpens and toys. (See Antkowiak Decl. 8, Exh. 4 (Photograph of a KFRC Sleeping
Area of Housing Suite); Antkowiak Decl. 9, Exh. 5 (Photograph of a KFRC Day Room).) Meanwhile, a
typical STFRC housing unit consists of two bedrooms of four beds each, which can accommodate one or more
families. (See Antkowiak Decl. 17, Exh. 16, 17 (Photographs of STFRC Bedroom Areas of a Housing Unit).)
Each housing unit has a family room featuring a sitting area, a flat-screen television, a telephone, and a kitchenette
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With evidence in the form of declarations, Plaintiffs contradict aspects of Defendants

rosy account of the conditions in the centers and contend that they are not acceptable. (See, e.g.,
Ps First Set, Exh. 12 (J_H_M Decl.) 10, 11 (There are no classes for my children here; we
are told they will start the 29th of this month. . . . We are not permitted visits with our family
members.); Ps First Set, Exh. 14 (M_F_S Decl.) 9 (My two sons have both been ill since
we arrived in Artesia. They had fever and coughs for about a week, and were also vomiting and
diarrhea [sic]. . . . The doctor told me they didnt have medicine for them and that they should
just drink water. More recently medicine arrived, and now both are getting better.).
Assuming the conditions are acceptable or even outstanding, however, Defendants cannot
be in substantial compliance with the Agreement because the facilities are secure and nonlicensed. The purpose of the licensing provision is to provide class members the essential
protection of regular and comprehensive oversight by an independent child welfare agency.
Defendants agree with Plaintiffs that oversight was the animating concern behind the licensing
provision. Defendants respond that the facilities are subject to inspections by the ICE Office of
Professional Responsibilitys Office of Detention Oversight and an independent compliance
inspector. (See Declaration of Tae D. Johnson (Johnson Decl.) 19.) Furthermore,
Defendants have filed a motion to modify the Agreement to allow for Plaintiffs to have oversight
regarding compliance. Nonetheless, Defendants responses do not satisfy the Agreements
unambiguous mandate to place children it does not release in a program, agency or organization
that is licensed by an appropriate State agency to provide residential, group, or foster care
services for dependent children. (Agreement 6.)
with a refrigerator that is re-stocked with beverages and snacks twice a day. (See Antkowiak Decl. 18, Exh. 18, 19
(Photographs of an STFRC Family Room of a Housing Unit).)
The centers also contain open recreational areas for sports and play areas for younger children. (See
Antkowiak Decl. 10, Exh. 6, 7 (Photographs of the KFRC Soccer Field and Play Area); Antkowiak Decl. 19,
Exh. 20 (Photograph of STFRC Recreational Areas).) In addition, the centers provide state-licensed teachers to
all school-age children, where the classroom ratio is one teacher to 20 students, and both recreational and law library
services to residents. (See Antkowiak Decl. 11, Exh. 8 (Photograph of a KFRC Classroom); Antkowiak Decl.
12, Exh. 9 (Photograph of KFRCs Recreational Library with Play Areas); Antkowiak Decl. 20, Exh. 21, 22, 23,
24 (Photographs of STFRC Classrooms); Antkowiak Decl. 22, Exh. 27, 28 (Photographs of STFRCs
Recreational and Law Libraries).) Residents have access to medical, dental, and social services. (See Antkowiak
Decl. 13, Exh. 10, 11 (Photographs of KFRC Dental Examining Rooms); Antkowiak Decl. 24, Exh. 32, 33
(Photographs of STFRC Medical Examining/Treatment Rooms).) Finally, the centers also serve three dieticianapproved meals a day. (See Antkowiak Decl. 14, Exh. 12, 13 (Photographs of KFRCs Salad Bar and Snack
Refrigerator); Antkowiak Decl. 23, Exh. 29, 30, 31 (Photographs of STFRCs Dining Room and Food
Service).)
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Moreover, even if the Court disregards the conditions in, and the unlicensed status of, the
facilities, the facilities are secure, which violates the Agreements requirement that [a]ll homes
and facilities operated by licensed programs . . . shall be non-secure as required under state law
. . . . (Agreement 23.) Plaintiffs proffer evidence showing that ICEs detention facilities are
secure.
The Karnes City facility is a large block building, which appeared to have
only one entrance. To enter, my colleagues and I were required to deposit our cell
phones in a metal locker, exchange our drivers licenses for visitors badges, pass
our personal items through an X-ray machine, and walk through a metal detector.
We were then directed to a sally port, which comprised two heavy metal doors
with a small room between. We passed through one door, it closed behind us; we
were then directed to display our visitors badges to a guard behind heavy glass;
the second door was opened, we walked through, and we then reached the interior
of the facility.
The Karnes facility is constructed of concrete block. A staff member
stated the facility had been designed to house adult male prisoners. . . . In the
central open area I saw neither a direct view nor access to the outside: it was
effectively surrounded by the high block walks of the facility itself, denying those
inside any means of ingress or egress except via the secure entrance I earlier
described. Facility staff stated that children detained at Karnes have never been
permitted outside the facility to go to the park, library, museum, or other public
places. Children attend school exclusively within the walls of the facility itself.
Detainees, including children, are required to participate in a census or headcount three times daily.
(Holgun Decl. 4-5.)
Defendants do not dispute that the facilities are secure. Nor have Defendants argued that
this provision is not a material term in the Agreement. Plaintiffs present evidence that secure
confinement can inflict long-lasting psychological, developmental, and physical harm on
children regardless of other conditions. (See Ps First Set, Exh. 24 (Declaration of Luis H. Zayas
(Zayas Decl.)) 1-6.) Plaintiffs also proffer evidence that the children at KFRC specifically
are suffering emotional and other harms as a result of being detained. (Id. 10.)
Because the centers are secure, unlicensed facilities, and the provision is a material term
in the Agreement, Defendants cannot be deemed in substantial compliance with the Agreement.
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Thus, Defendants have materially breached the Agreements requirement that children who are
not released be housed in non-secure, licensed facilities.
3.
Custody Provision
Upon apprehension, class members are taken to a Border Patrol station, where they spend
one to several nights in holding cells before they are turned over to the Office of Refugee
Resettlement, if unaccompanied, or to ICE for longer-term housing, if accompanied. See 6
U.S.C. 279. Plaintiffs argue that Defendants have materially breached the Agreement by
holding recently apprehended children in facilities that do not comply with the following
provision:
Following arrest, the INS shall hold minors in facilities that are safe and sanitary
and that are consistent with the INSs concern for the particular vulnerability of
minors. Facilities will provide access to toilets and sinks, drinking water and food
as appropriate, medical assistance if the minor is in need of emergency services,
adequate temperature control and ventilation; . . . .
(Agreement 12.)
Plaintiffs proffer evidence, in the form of numerous declarations from recent detainees,
testifying to conditions that do not meet the safe and sanitary standard described in Paragraph
12 of the Agreement. These conditions include extreme cold. Numerous declarants referred to
CBP facilities as hieleras or iceboxes and described being given coverings of aluminum foil
that were inadequate to keep them warm. (See, e.g., Ps First Set, Exh. 18 (D_V_A Decl.) 4
(We were given nothing to keep warm except a cover of aluminum foil); Ps First Set, Exh. 44
(A_F_D Decl.) 5 (The very big room was very cold. It was like a hielera (ice box). . . .
There were no blankets or mattresses, and they only gave us one aluminum blanket each to keep
ourselves warm. It was not enough, and my daughter and I were both very cold.); Ps First Set,
Exh. 45 (H_M_P Decl.) 8 (When I was in the Perrera, I was with 8 moms, with their small
babies. We were given a small mattress and an aluminum blanket. . . . It was also super cold in
that place . . . .).)
Recent detainees also testified to overcrowding. Children and their mothers were held for
one to three days in rooms with 100 or more unrelated adults and children, which forced children
to sleep standing up or not at all. (See, e.g., D_V_A Decl. 4 (The Border Patrol put us in a
cell with 100 other women and children. There were so many of us that only perhaps half of us
could lie down.); A_F_D Decl. 5 (There were about one hundred and fifty people in the
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room. It was very crowded, and there was no space to even lie down on the floor. . . . My
daughter and I had to sleep standing up.).)
Inadequate nutrition and hygiene were also reported. (See, e.g., D_V_A Decl. 5 (The
cell had only two toilets for all of us to use. . . . There was no waste basket in the stalls, so
people had to throw used Kotex and used toilet paper on the floors.); Ps First Set, Exh. 49
(L_B_S Decl.) 6 (In the jail in McAllen . . . [t]he moms slept there in the bathroom, with
their babies in their arms. . . . The immigration officials, when the people asked for something to
drink or to eat they answered that it wasnt their country, it wasnt their house. So they didnt
bring them anything.); Ps First Set, Exh. 39 (S_B_D Decl.) 5 (We were fed twice, and
both times it was just bread with ham and a juice box.).)
In response, Defendants contend that given the volume of individuals passing through a
Border Patrol station each day as well as the short duration of their stay at a Border Patrol
station, it would be impossible to provide the same level of care at a Border Patrol station as one
would expect at a longer-term facility. Nevertheless, Defendants argue that they have met the
minimal standards set forth in the Agreement. Defendants rely solely on their Hold Rooms and
Short Term Custody Policy and Oaks declaration to support the proposition that they have met
the appropriate standards.
According to Oaks, after an individual has been brought to a Border Patrol station, the
individual undergoes a preliminary health screening. (See Oaks Decl. 10.) If the individual
displays any symptoms of illness or complains of illness, the individual is either treated by a
contract medical provider at the facility or taken to the appropriate medical facility, such as the
local emergency department. (Id. 10, 11.) After the health screening, the detainees are
separated by age and gender, although every effort is made to keep young children with their
parents. (Id. 12.) Border Patrol policy mandates that each facility be kept safe, secure, and
clean with sufficient space and the appropriate number of toilets for the occupants it is designed
to accommodate. (Id. 13.) A hold room is typically constructed of impervious materials that
can be easily cleaned and are hygienic, and supervisors are required to ensure that each cell is
regularly cleaned and sanitized. (Id. 15.) There are no trash cans in the hold rooms for safety
reasons, as they may be used as a weapon. (Id. 16.) Similarly, the lights are kept on at all
times for security reasons and operational necessity. (Id. 19.) According to Defendants, the
temperature is maintained at a comfortable temperature, although those who are not
accustomed to air conditioning at times find it cooler than they are accustomed to. (Id. 20.)
Defendants also explain that the use of mylar blankets is necessary in order to provide costeffective, sanitary bedding that does not require routine laundering or transmit communicable
diseases such as lice or scabies. (Id. 21.)
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The testimony of one Border Patrol official regarding CBPs policies is insufficient to
outweigh the evidence presented by Plaintiffs of the widespread and deplorable conditions in the
holding cells of the Border Patrol stations. It is true that the Agreement holds Defendants to a
lower standardsafe and sanitarywith respect to the temporary holding cells. But
Defendants have wholly failed to meet even that minimal standard. With respect to the
overcrowded and unhygienic conditions of the holding cells, all that Defendants have done is
point to their own policies requiring sufficient space, an appropriate number of toilets, and
regular cleaning and sanitizing. The mere existence of those policies tells the Court nothing
about whether those policies are actually implemented, and the current record shows quite
clearly that they were not. Furthermore, with respect to the temperature of the cells, the
provision of mylar coverings, the absence of trash cans, and the policy of keeping the lights on at
all times, Defendants have only confirmed the veracity of Plaintiffs testimony in the course of
attempting to justify these conditions. Finally, Defendants have said nothing to contradict
Plaintiffs accounts of inadequate nutrition, nor to offer impossibility or similar doctrines as a
defense to the apparent contractual violation.
In light of the voluminous evidence that Plaintiffs have presented of the egregious
conditions of the holding cells, the Court finds that Defendants have materially breached the
Agreements term that Defendants provide safe and sanitary holding cells for class members
while they are in temporary custody.
III.
MOTION TO AMEND
Because the Court has found Defendants in material breach of the Agreement in the
respects described supra, Defendants move to modify the Agreement pursuant to Fed. R. Civ. P.
60(b)(5) and (6).
Defendants seek to modify the Agreement in four ways. First, Defendants seek to
eliminate or amend portions of the Agreement that have been superseded by, or are inconsistent
with, the HSA and the TVPRA. Defendants ask that the Agreement reflect the changed
responsibilities of DHS and HHS, and the abolishment of the INS, following the HSA and the
TVPRA. In particular, Defendants seek to amend Section VI of the Agreement relating to the
General Policy Favoring Release, which provides:
Where the INS determines that the detention of the minor is not required either to
secure his or her timely appearance before the INS or immigration court, or to
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ensure the minors safety or that of others, the INS shall release a minor from its
custody without unnecessary delay, in the following order of preference, to: A. a
parent; B. a legal guardian; C. an adult relative (brother, sister, aunt, uncle, or
grandparent) . . . .
(Agreement 14.) Defendants argue that significant portions of this paragraph have been
substantially superseded by the TVPRA, and to the extent the Agreement is inconsistent with
the statute it should be modified.
Second, Defendants would like clarification that the preference for release of alien
minors to a parent, legal guardian, or adult relative, does not apply to minors who arrive in the
United States accompanied by a parent or legal guardian. Defendants argue that, if the provision
is enforced as written, ICE would be required to separate families if it wishes to detain an adult
alien accompanied by a child. This outcome would negatively impact ICEs ability to exercise
its discretion to detain individuals as necessary and as it is authorized to do under the INA. The
enforcement of the provision would also hamper Defendants ability to operate the family
residential facilities, which in turn would deprive Defendants of a tool in sending a message to
families that they cannot illegally cross the border.
Third, Defendants would like to make clear that the state licensing requirement for
housing minors does not apply to family residential facilities. Defendants reason that, because
state licensing requirements cannot be applied to the facilities, the licensing requirement should
be eliminated. Defendants have instead proposed that ICE be bound by the requirements in
Attachment 1 with respect to the conditions at these facilities, as well as independent monitoring
and reporting requirements to ensure compliance.
Fourth, Defendants seek to amend ongoing reporting requirements to eliminate the
reporting requirements that applied to the implementation of the original Agreement in 1997 and
to add reporting requirements related to the inspection of family residential facilities.
A.
Legal Standard
A court may, on motion and just terms, relieve a party or its legal representative from
a final judgment, order, or proceeding if applying it prospectively is no longer equitable. Fed.
R. Civ. P. 60(b)(5); see Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S. 367, 383, 112 S. Ct. 748,
116 L. Ed. 2d 867 (1992) (Rule 60(b)(5) provides that a party may obtain relief from a court
order when it is no longer equitable that the judgment should have prospective application, not
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when it is no longer convenient to live with the terms of a consent decree.) (internal quotation
marks omitted).
[The] party seeking modification of a consent decree bears the burden of establishing
that a significant change in circumstances warrants revision of the decree. Id. A party seeking
modification of a consent decree may meet its initial burden by showing either a significant
change either in factual conditions or in law. Id. The change in the law must be so significant
that complying with both statute and a prior agreement would be impermissible. Miller v.
French, 530 U.S. 327, 347-48, 120 S. Ct. 2246, 147 L. Ed. 2d 326 (2000) (internal quotation
marks omitted). Modification of a consent decree may also be appropriate when changed factual
conditions make compliance with the decree substantially more onerous, unworkable because
of unforeseen obstacles, or when enforcement . . . without modification would be detrimental
to the public interest. Rufo, 502 U.S. at 383.
A court may also relieve a party or its legal representative from a final judgment, order,
or proceeding for any other reason that justifies relief. Fed. R. Civ. P. 60(b)(6). Rule
60(b)(6) has been used sparingly as an equitable remedy to prevent manifest injustice. United
States v. Alpine Land & Reservoir Co., 984 F.2d 1047, 1049 (9th Cir. 1993). The rule is to be
utilized only where extraordinary circumstances prevented a party from taking timely action to
prevent or correct an erroneous judgment. Id. (citing, as an example, an instance where the rule
was used to set aside a default judgment in a denaturalization proceeding because the petitioner
had been ill, incarcerated, and without counsel for the four years following the judgment).
B.
Discussion
Defendants assert that two changesone in the law and the other in factual conditions
justify modification of the Agreement.
1.
There Has Been No Change in Law Warranting Modification
First, with respect to changes in the law, Defendants contend that the Agreement applied
only to the U.S. Department of Justice (DOJ) and the legacy U.S. Immigration and Nationality
Service (INS). The Homeland Security Act of 2002 (HSA) abolished the latter agency and
transferred several of its functions related to the detention, transportation, and removal of minors
to the newly formed DHS and its components, including CBP and ICE.10 Plaintiffs argue that
10
Defendants mention that HSA transferred INSs functions with respect to unaccompanied minors to
Health and Human Services (HHS), Office of Refugee Resettlement. See 6 U.S.C. 279, 552. The William
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there are no actual conflicts between the Agreement and subsequent legislation. In fact, under
HSA 1512, codified at 6 U.S.C. 552, Congress, in the following provisions, directed that ICE
should remain bound by agreements existing before the enactment of the HSA:
(a)(1) Completed administrative actions of an agency shall not be affected by the
enactment of this Act or the transfer of such agency to the Department, but shall
continue in effect according to their terms . . . .
(2) For purposes of paragraph (1), the term completed administrative action
includes . . . agreements, [and] contracts . . . .
(c) PENDING CIVIL ACTIONS.Subject to the authority of the Secretary
under this Act, pending civil actions shall continue notwithstanding the enactment
of this Act or the transfer of an agency to the Department, and in such civil
actions, . . . judgments [shall be] enforced in the same manner and with the same
effect as if such enactment or transfer had not occurred.
Id. (emphasis added).
Furthermore, Defendants have proffered no evidence that they have experienced any
difficulty implementing the Agreement with respect to unaccompanied children and children
apprehended with their fathers in the 13 years since the HSA was passed. In light of the HSAs
savings clause and Defendants practice with respect to minors for the last 13 years since the
enactment of the HSA, Defendants argument that the change in the law created by the HSA
compels modification of the Agreement falls flat.
Defendants also allege that a second change in the law, the William Wilberforce
Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA), Pub. L. No. 110-457,
235 (codified in principal part at 8 U.S.C. 1232), conflicts with the Agreement and is reason to
modify the Agreement. The TVPRA requires CBP to determine whether the child is a national
or habitual resident of a country contiguous to the United States, and if so, to screen the child to
see if she is a victim of trafficking, fears return because of a credible fear of persecution, or is
otherwise unable to consent to return. 8 U.S.C. 1232(a)(2)(A). If none of those factors are
present, the child is offered an opportunity to withdraw his application for admission to the
United States and return to his country. 8 U.S.C. 1232(a)(2)(B). When the necessary
Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA), Pub. L. No. 110-457, 235
(codified in principal part at 8 U.S.C. 1232), also directed DHS to develop policies and procedures to ensure that
unaccompanied minors are safely repatriated to their country of nationality or of last habitual residence. Because
this action concerns Defendants policy regarding minors who are accompanied by their mothers, these changes with
respect to unaccompanied minors do not appear relevant to the Courts analysis.
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screening determination cannot be made within 48 hours of the childs apprehension, or the child
does not or cannot voluntarily withdraw her application for admission, or the child is from a noncontiguous country, the child is transferred to HHS within 72 hours of determining that the child
is an unaccompanied minor and may be placed in removal proceedings before an immigration
judge. 8 U.S.C. 1232(a)(4), (a)(5)(D), (b)(3). HHS must then place the child in the least
restrictive setting that is in the best interest of the child, taking into consideration danger to
self, danger to the community, and risk of flight. 8 U.S.C. 1232(c)(2). Accompanied minors
do not fall under the provisions of the TVPRA. See 6 U.S.C. 279(g)(2); 8 U.S.C. 1232.
Defendants argue that because CBP, under the TVPRA, may not release an
unaccompanied minor from its custody other than by returning her to her home country if she is
from a contiguous country, 8 U.S.C. 1232(a)(2)(B), or by transferring her to HHS custody
within 72 hours of determining that she is an unaccompanied minor, 8 U.S.C. 1232(b)(3),
Defendants cannot comply with (1) Paragraph 14 of the Agreement, which requires release of
minors following a certain order of preference; (2) Paragraph 12A of the Agreement, which
provides the government up to 3 days to transfer an unaccompanied minor to a licensed program
in the same district, and up to 5 days to transfer an unaccompanied minor to a licensed facility
outside the area; and (3) Paragraph 21 of the Agreement, which provides that a minor may be
transferred to a suitable state or county juvenile detention facility (or secure INS facility) under
certain conditions.
Defendants argument regarding the TVPRA misses the mark since the Agreements
provision controls release pending removal proceedings and does not interfere with the grounds
for removal itself. Further, the Agreement does not interfere with the TVPRAs requirement that
CBP transfer a minor to HHS custody within 72 hours of determining that she is an
unaccompanied minor. Once CBP makes the determination that a minor is unaccompanied and
transfers her to HHS custody, it is then HHSs responsibility to comply with the provisions cited
supra. Defendants have not demonstrated that HHS has had any difficulty complying with the
Agreements provisions.
Moreover, Plaintiffs have pointed to provisions in the TVPRA that are consistent with the
Agreements preference for release provision, such as the TVPRAs requirement that CBP find
[s]afe and secure placements for children in the least restrictive setting that is in the best
interests of the childtypically, a suitable family member. 8 U.S.C. 1235(c)(2). The same
argument can be made that, similar to the Agreements non-secure facilities provision, the
TVPRA also mandates that [a] child shall not be placed in a secure facility absent a
determination that the child poses a danger to self or others or has been charged with having
committed a criminal offense. Id.
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Finally, the TVPRA is simply inapplicable to accompanied children. The fact that the
TVPRA requires HHS to decide whether unaccompanied children should be released or housed
in secure facilities has little relevance to whether ICE is unable to do the same with accompanied
children.
Accordingly, Defendants have not met their burden of showing that a significant change
in the law, such that complying with the Agreement would be impermissible, has occurred, thus
requiring modification of the Agreement. See Miller, 530 U.S. at 347-48.
2.
There is No Change in Factual Circumstances Warranting Modification
With respect to changed factual conditions, Defendants note that, unlike in 1993, when an
influx of approximately 8,500 children was considered a serious problem, Reno v. Flores, 507
U.S. 292, 295 (1993), the number of unaccompanied and accompanied children has increased.
In fiscal year 2014, the number of accompanied children apprehended was 38,845 and the
number of unaccompanied minors apprehended reached 68,541. (Mot. to Amend at 5.)
Defendants contend that the surge is due to the mistaken belief that the release of detained
individuals with a Notice to Appear is equivalent to a permiso, allowing them to stay in the
United States. Defendants also appear to assert not only that the Agreement caused the surge but
also that their female-headed family detention policy has deterred others who would have come.
Defendants are effectively proposing that the Court unilaterally modify the Agreement because
enforcement of the Agreement without modification would be detrimental to the public interest.
See Rufo, 502 U.S. at 383.
The Court agrees that what Defendants describe is a serious problem, even though it
appears the problem has abated somewhat. With respect to whether the Agreements provisions
caused the surge, Defendants do not satisfactorily explain why the Agreement, after being in
effect since 1997, should only now encourage others to enter the United States without
authorization. Nor do Defendants proffer any competent evidence that ICEs detention of a
subset of class members in secure, unlicensed facilities has deterred or will deter others from
attempting to enter the United States. As discussed supra, the Court has considered in detail the
evidence Defendants presented of the deterrent effect of the detention policy and finds the
evidence distinctly lacking in scientific rigor. It is astonishing that Defendants have enacted a
policy requiring such expensive infrastructure without more evidence to show that it would be
compliant with an Agreement that has been in effect for nearly 20 years or effective at achieving
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what Defendants hoped it would accomplish.11 It is even more shocking that after nearly two
decades Defendants have not implemented appropriate regulations to deal with this complicated
area of immigration law. In light of the evidence, or lack thereof, the Court finds that
Defendants have failed to meet their burden of showing that a change in factual circumstances
requires modification of the Agreement.
IV.
CONCLUSION
Based on the foregoing, the Court finds that Defendants are in breach of the Agreement
and GRANTS Plaintiffs motion to enforce the Agreement. Defendants motion to amend the
Agreement is DENIED. Defendants are hereby ordered to show cause why the following
remedies should not be implemented within 90 days.
1. As required by Paragraph 18 of the Agreement, Defendants, upon taking an
accompanied class member into custody, shall make and record prompt and
continuous efforts toward family reunification and the release of the minor pursuant
to Paragraph 14 of the Agreement.
2. Unless otherwise required by the Agreement, Defendants shall comply with
Paragraph 14A of the Agreement by releasing class members without unnecessary
delay in first order of preference to a parent, including a parent who either was
apprehended with a class member or presented herself or himself with a class
member. Class members not released pursuant to Paragraph 14 of the Agreement will
be processed in accordance with the Agreement, including, as applicable, Paragraphs
6, 9, 21, 22, and 23.
3. Accompanied class members shall not be detained by Defendants in unlicensed or
secure facilities that do not meet the requirements of Paragraph 6 of the Settlement, or
11
Even were there such evidence that Defendants modifications would act as a successful deterrent,
Plaintiffs contend that deterrence is not a lawful criterion for denying release. See R.I.L.R. v. Johson, No. 15-0011,
Opinion ECF No. 33, at 34-35 (D.D.C. Feb. 20, 2015) (The justifications for detention previously contemplated by
the Court relate wholly to characteristics inherent in the alien himself or in the category of aliens being detained
that is, the Court countenanced detention . . . on the basis of those aliens risk of flight or danger to the community
. . . . In discussing civil commitment more broadly, the Court has declared . . . general deterrence justifications
impermissible.) (internal citation omitted) (emphasis in original). Because Defendants have failed to present any
evidence that the policy they have implemented either causes or addresses the recent change in factual
circumstances, the Court need not rule on the issue of whether deterrence is a lawful criterion for denying release.
CV-90

#:2698

Case No.
Date
July 24, 2015

Page
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in appropriate cases, as set forth in the Agreement, in facilities that do not meet the
requirements of Paragraphs 12A, 21, and 23. Defendants shall not selectively apply
the influx provision of Paragraph 12C of the Agreement to house class members
apprehended with a parent in facilities that do not comply with the Agreement.
4. To comply with Paragraph 14A of the Agreement and as contemplated in Paragraph
15, a class members accompanying parent shall be released with the class member in
a non-discriminatory manner in accordance with applicable laws and regulations
unless after an individualized custody determination the parent is determined to pose
a significant flight risk, or a threat to others or the national security, and the flight risk
or threat cannot be mitigated by an appropriate bond or conditions of release.
5. In consultation with Plaintiffs, Defendants shall propose standards, and procedures

for monitoring compliance with such standards, for detaining class members in
facilities that are safe and sanitary, consistent with concern for the particular
vulnerability of minors, and consistent with Paragraph 12 of the Agreement,
including access to adequate drinking water and food, toilets and sinks, medical
assistance if the minor is in need of emergency services, temperature control,
ventilation, adequate supervision to protect minors from others, and contact with
family members who were arrested with the minor. Defendants shall file such
proposed standards within 90 days of the date of this Order. Plaintiffs shall file
objections thereto, if any, 14 days thereafter.
6. Defendants shall monitor compliance with the Agreement and this Order and shall
provide Class Counsel on a monthly basis statistical information collected pursuant to
Paragraph 28A of the Agreement.
Defendants shall file a response to the OSC by August 3, 2015. Plaintiffs shall file a response
thereafter by August 10, 2015, after which the matter will stand submitted.
IT IS SO ORDERED.
CV-90

Judge Gee Order - Flores

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Case 2:85-cv-04544-DMG-AGR Document 177 Filed 07/24/15 Page 1 of 25 Page ID #:2674

UNITED STATES DISTRICT COURT

CV 85-4544 DMG (AGRx)

Title Jenny L. Flores, et al. v. Jeh Johnson, et al.

July 24, 2015

DOLLY M. GEE, UNITED STATES DISTRICT JUDGE

Attorneys Present for Plaintiff(s)

Attorneys Present for Defendant(s)

Proceedings: IN CHAMBERSORDER RE PLAINTIFFS MOTION TO ENFORCE

Initials of Deputy Clerk KT

Case 2:85-cv-04544-DMG-AGR Document 177 Filed 07/24/15 Page 2 of 25 Page ID #:2675

UNITED STATES DISTRICT COURT

CV 85-4544 DMG (AGRx)

Title Jenny L. Flores, et al. v. Jeh Johnson, et al.

July 24, 2015

Initials of Deputy Clerk KT

Case 2:85-cv-04544-DMG-AGR Document 177 Filed 07/24/15 Page 3 of 25 Page ID #:2676

UNITED STATES DISTRICT COURT

CV 85-4544 DMG (AGRx)

Title Jenny L. Flores, et al. v. Jeh Johnson, et al.

July 24, 2015

Initials of Deputy Clerk KT

Case 2:85-cv-04544-DMG-AGR Document 177 Filed 07/24/15 Page 4 of 25 Page ID #:2677

UNITED STATES DISTRICT COURT

CV 85-4544 DMG (AGRx)

July 24, 2015

Title Jenny L. Flores, et al. v. Jeh Johnson, et al.

Preference for Release Provision

The Agreement Encompasses Accompanied Minors

Initials of Deputy Clerk KT

Case 2:85-cv-04544-DMG-AGR Document 177 Filed 07/24/15 Page 5 of 25 Page ID #:2678

UNITED STATES DISTRICT COURT

CV 85-4544 DMG (AGRx)

Title Jenny L. Flores, et al. v. Jeh Johnson, et al.

July 24, 2015

Initials of Deputy Clerk KT

Case 2:85-cv-04544-DMG-AGR Document 177 Filed 07/24/15 Page 6 of 25 Page ID #:2679

UNITED STATES DISTRICT COURT

CV 85-4544 DMG (AGRx)

Title Jenny L. Flores, et al. v. Jeh Johnson, et al.

July 24, 2015

Initials of Deputy Clerk KT

Case 2:85-cv-04544-DMG-AGR Document 177 Filed 07/24/15 Page 7 of 25 Page ID #:2680

UNITED STATES DISTRICT COURT

CV 85-4544 DMG (AGRx)

Title Jenny L. Flores, et al. v. Jeh Johnson, et al.

July 24, 2015

Defendants No-Release Policy is a Material Breach of the Agreement

Initials of Deputy Clerk KT

Case 2:85-cv-04544-DMG-AGR Document 177 Filed 07/24/15 Page 8 of 25 Page ID #:2681

UNITED STATES DISTRICT COURT

CV 85-4544 DMG (AGRx)

Title Jenny L. Flores, et al. v. Jeh Johnson, et al.

July 24, 2015

Initials of Deputy Clerk KT

Case 2:85-cv-04544-DMG-AGR Document 177 Filed 07/24/15 Page 9 of 25 Page ID #:2682

UNITED STATES DISTRICT COURT

CV 85-4544 DMG (AGRx)

Title Jenny L. Flores, et al. v. Jeh Johnson, et al.

July 24, 2015

Defendants Policy Argument In Favor of Detaining Children

Initials of Deputy Clerk KT

Case 2:85-cv-04544-DMG-AGR Document 177 Filed 07/24/15 Page 10 of 25 Page ID

UNITED STATES DISTRICT COURT